Beacon Broadside

Saying "No" to the Death Penalty

Joey L. Mogul is a partner at the People's Law Office in Chicago and director of the Civil Rights Clinic at DePaul University's College of Law. She is co-author, with Andrea J. Ritchie and Kay Whitlock, of Queer (In)justice: The Criminalization of LGBT People in the United States. The commentary excerpted below appeared at the Windy City Times.

Join all three co-authors in celebrating the national launch of Queer (In)Justice at Creating Change, February 2 - 6 in Minneapolis Minnesota http://www.creatingchange.org/! They will be hosting a workshop on policing, prosecution and punishment of LGBT people and developing responses to violence against queers on Friday, February 4 from 10:45 am - 12:15 pm and joining Queers for Economic Justice for an evening reception celebrating QEJ's achievements and the book's publication at 8:30 pm. Both events at the at the Hilton Minneapolis,1001 Marquette Avenue South, see conference signage for room locations.
 
Kay Whitlock and Joey Mogul will also be appearing at University of Minnesotal-Twin Cities on February 4 from 3:00PM to 5:00PM in Room 609 Social Sciences,and at St. Catherine's Universityfrom 11:30 - 1:00 pm on February 3 at the Department of Sociology/Critical Studies of Race and Ethnicity.

This past month, both houses of the Illinois General Assembly passed bill SB 3539, which would repeal the death penalty in Illinois. The bill is now awaiting Gov. Pat Quinn's signature. If he signs the bill, Illinois will become the 16th state to repeal the death penalty in the United States and the third to do so in the past three years; it would also take its place alongside 95 countries that have abolished the death penalty.

Quinn has not decided whether he will sign the legislation, and has indicated that he wants to hear from the people of Illinois before making his final decision. Here are the reasons you should make that call urging him to sign the bill.

In addition to repealing the death penalty, the bill would redirect its necessary funding toward services for murder victims' family members and for law enforcement. The funds currently spent on the death penalty are quite significant, particularly in light of the crushing budget crisis we are facing in Illinois. According to the Illinois Coalition to Abolish the Death Penalty (ICADP), more than $100 million in taxpayer money was spent on the death penalty in 2003 alone. It is well known that implementation of the death penalty is far most costly than imprisonment.

The passage of this legislation is the culmination of a mammoth effort led by the ICADP. It follows decades of litigation, investigative journalism and organizing that have uncovered mountains of evidence demonstrating that the death penalty is fatally flawed and beyond repair. (Read more...)

LGBT Families Should Not Distance Themselves from Single Mothers

Nancy D. Polikoff is Professor of Law at American University Washington College of Law, where she teaches in the areas of family law, civil procedure, and sexuality and the law. She is the author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Get 10% off on this and all other Beacon Press titles at our Holiday Sale, running through December 31st. This post originally appeared on Polikoff's blog.

If supporters of Prop 8 have standing to appeal Judge Walker's order in Perry v. Schwarzenegger (even though the state did not appeal it), the Ninth Circuit Court of Appeals will decide whether Prop 8 violates the federal constitution. If you listened to the oral argument yesterday, you heard the term "rational basis" used a lot. That term means something in constitutional law. Every time the state puts people in categories -- classifies them -- it must have at least a "rational basis" for doing so. Charles Cooper, arguing for the Prop 8 supporters, therefore had to say what the rational basis is for allowing different-sex couples to marry but denying that right to same-sex couples.

Here's what he said. The key purpose of marriage is to manage the one relationship that naturally produces children, often unintentionally. Society's interests are threatened by unwanted pregnancy because a child raised by "its" (his word) mother alone violates society's vital interests. Society will have to step in and assist that single parent. ("That is what usually happens," he said). He argued as an "undeniable fact" that children raised in that circumstance have poor outcomes. In the middle of this last sentence, Judge Reinhardt said that sounded like a good argument for prohibiting divorce, but how does it relate to same-sex couples raising children?

His question caused chuckles in the courtroom, but here is its constitutional significance: The rational basis test requires that the state's classification be rationally related to achieving a legitimate state interest. So, first, what is the legitimate state interest? In general, providing for the welfare of children is of course legitimate, but, in this context, Cooper, on behalf of opponents of same-sex marriage, is essentially saying that the state has a legitimate interest in preventing births to single mothers. I strenuously object to this, on its own terms. And I wish supporters of same-sex marriage would object to it as well.

Instead, the emphasis among gay rights advocates is the approach reflected in Judge Reinhardt's question. It assumes that the state does have a legitimate interest in preventing births to unmarried mothers but suggests that keeping same-sex couples from marrying does nothing to achieve that objective. Judge Reinhardt's comment about divorce doesn't directly tackle bearing a child outside of marriage but does explicitly address a corrolary principle that opponents of same-sex marriage adhere to, which is that children do best raised by their married mother and father. Banning divorce would result in more couples staying married, so it does bear a rational relationship to having children raised by their married parents. Of course there is no political support for banning divorce, so no state is going to do that.

As a matter of constitutional argument, it is completely proper to focus on the relationship between the classification and the state interest. If the classification is not rationally related to the state interest then it should fail as a matter of Equal Protection law. So if banning same-sex marriage won't result in fewer heterosexual pregnancies outside of marriage, then it is irrational. (Or if allowing same-sex marriage won't result in more heterosexual pregnancies outside of marriage, then it is irrational.)

But I want to directly address the alleged state interest in reducing births outside of marriage. I wish that gay rights advocates would say directly that the state has no business prefering heterosexual motherhood within marriage over heterosexual motherhood outside of marriage. I do not believe that should be considered a "legitimate state interest." The arguments from social science about the well-being of children, which Charles Cooper referred to as "undeniable fact," are overstated, mischaracterized, covertly political, and flat out wrong. I've written about this in many posts about spending federal dollars on "marriage promotion." Consistently, the right wing argues that poverty is the result of unmarried births and that marriage is the way to end poverty. When that reasoning prevails, poverty looks like the moral failing of individuals who do not marry, rather than the result of systemic policies that reinforce income inequality that could be addressed through laws and programs designed to reduce that inequality. We know how to end poverty but we lack the political will to do it.

Charles Cooper's argument about the rational basis for opposing same-sex marriage is that if you redefine the word "marriage" to include same-sex couples you change the institution of marriage and make it something other than the place society provides for the well-being of children born, often accidentally, from the sexual relationship of the two participants. Unfortunately, it's an argument that has been successful in some state courts. I believe it fails the rational basis test in the way that Prop 8 opponents argued, but I also wants the gay rights movement to recognize its common cause with single mothers. Family structure does not determine child outcome. All children need government policies that optimally serve their physical, emotional, and educational needs. That's the gay rights position I champion.

Yes, Virginia, There Are Miracles in the Juvenile Justice System

David Chura is the author of I Don’t Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. He has worked with at-risk teenagers for the past 40 years. For 26 of those years, he taught English and creative writing in community based alternative schools and in a county penitentiary. His writings have appeared in the New York Times as well as other scholarly and literary journals. Get 10% off on this and all other Beacon Press titles at our Holiday Sale, running through December 31st.

The statistics are grim, but the reality behind those numbers is even grimmer for the many young people locked up in US adult prisons. Since publishing I Don't Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup, about my years teaching in a New York county jail, I spend a lot of time writing, talking and hearing from families, professionals, and the young people themselves about the failures of our child welfare and criminal justice systems.

Depressing, discouraging stuff. That's why I need to tell you about Andrew. Andrew is a young African American in his late 20s. He's got a home, an education, and a profession. Andrew is a success.

But it wasn't always that way. As a very young child his schizophrenic mother was placed in long term care and Andrew was shuffled around to various family members until eventually he ended up in the foster care system. There he was moved from home to home to home. Then at 16 he was placed in an overcrowded and understaffed foster care facility where kids like him were warehoused. But he supposed it was better than being homeless. At least he had food and shelter. He even learned some things, mostly how to get into trouble, serious trouble.

Andrew would be the first to admit that he did stupid stuff. You might say that the first time he got arrested, the time he hopped a cab with a buddy who then pulled a knife and robbed the cabby, really wasn't his fault. But he wouldn't agree. Wrong place, wrong time, still makes a crime. And there was no way to excuse the other felonies he committed after that, felonies that landed him in state prison.

Andrew was just another young, black male fulfilling the destiny society defined for him: broken-down family, raised in the 'hood, poor, uneducated, unemployed and unemployable. America has a place for kids like him—jail or the grave.

But somewhere along the way he realized he didn't want either fate. During one of his county bids he enrolled in school and got himself into counseling with our school social worker. He studied for his GED and achieved it. With that first taste of success Andrew peeked over the top of the box society had put him in and glimpsed a different way to live. He began to recognize in himself the young man the social worker kept hinting at to him: someone who had survived a mentally ill mom, a neglectful family, a broken foster care system, and a punishing criminal justice system; someone who was ripe to make changes. Through his own efforts and the social worker's encouragement both while he was in jail and after he was released, Andrew began to do what he had to do to change.

And change he did. He enrolled in community college and excelled even while working 2 or 3 part-time jobs at a time to support himself. For awhile he slept in the back of the pizzeria where he worked or in a rented room he shared with a couple of other homeless young guys. After finishing his associate's degree he earned a scholarship to a Bronx college where he received his BA in social work, again while holding down multiple jobs.

Andrew didn't stop there. He got another scholarship, this time to Fordham University's Graduate School of Social Work. In 2008 he earned his MSW as well as the recognition of the New York State Social Work Educators Association as the "Social Work Student of the Year." He now works at a county Youth Bureau helping at-risk kids navigate the minefield of the streets.

Andrew is a success by anybody's standards. By the standards of our penal system he's a damn miracle. But we're an unforgiving and shortsighted nation, and so our tenacious stereotypes of ex-offenders, reinforced by CORI laws which give employers the right to deny felons jobs, has limited Andrew's possibilities in state social service agencies and academia. While interviewers acknowledge his personal, academic and professional accomplishments, that's as far as it goes. In America, once a felon always a felon.

Andrew got where he is because of his resolve and hard work and because someone had faith in him and acted on that faith. Unfortunately our criminal justice system doesn't provide that kind of support even though it is in the best interest of the society it is committed to protect.

But just because the prison system doesn't—or won't do it—that doesn't let the rest of us off the hook. Teachers, social workers, youth advocates, clergy and their congregations, community activists, family members, neighbors, employers, concerned citizens, we all need to push to have these exclusionary laws changed; to challenge our own and society's attitudes about ex-offenders; and to take a chance in whatever way we can on some kid once locked-up now locked-out of the world. One kid by one kid: It's a slow, chancy process. Maybe it's even futile. But then again, there's always Andrew.

Time to "Think Outside the Box" on CORI Reform

David Chura is the author of I Don’t Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. He has worked with at-risk teenagers for the past 40 years. For 26 of those years, he taught English and creative writing in community based alternative schools and in a county penitentiary. His writings have appeared in the New York Times as well as other scholarly and literary journals.

At the beginning of my ten years teaching teenagers in a county lockup I was always surprised, and yes, disappointed, when one of my students got rearrested.

Jail’s a sobering place no matter how tough you want to think you are. The deprivation, brutality, and oppression gets your attention especially if you’re 15 years old. So once locked up, many of the kids I taught saw my jailhouse classroom as an opportunity to do something productive. Along with education, some got counseling to deal with their addiction and anger problems; others reconnected with family and church. When they were released, they talked about changing their lives for the better. They were sincere and determined, and I was hopeful that they would do just that.

Over time, though, my attitude changed. More and more I was surprised when a student didn’t return. Despite society’s puzzlement as to why jail is a revolving door for so many teens, the reasons became obvious to me: The kids I taught might have made significant changes while locked up, but the world they were sent back into—poor, violent, defined by racism—had not. I’ve seen teens walk out the prison gates alone, carrying nothing but a plastic bag with their clothes, a token for the bus, and the county’s other freebie—the wise words, “Don’t come back.” That’s all. No planning, or guidance, or support to make the mega-changes needed to turn their lives around, changes that when you’re a kid with no resources feel insurmountable.

One major stumbling block for any former inmate is jobs. Ex-offenders don’t get hired. Teenage ex-offenders get hired even less. When I asked guys, “What are you doing back here?”,  they would talk about not being able to get jobs they knew they were qualified for because they had a record. It’s hard to “do the right thing” when the streets and their hustles—drugs, auto theft, guns, robbery—are the only employers eager to hire you back.

Christine O'Donnell, Have We Got a Book For You...

Jay Wexler is the author of Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars. He is a professor of law at Boston University Law School.

Christine O'Donnell: This could be you.

So, the blogosphere and tweetosphere and facebookosphere are all abuzz about how it appears that Christine O'Donnell doesn't really know what the first amendment's religion clauses say.  I've watched the footage, and I think that probably she was trying inartfully to make the old point that the First Amendment does not actually include the phrase "separation of church and state."  This is true, but irrelevant.  The First Amendment says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."   The Supreme Court has long interpreted these two clauses (the Free Exercise Clause and the Establishment Clause) to require a certain amount of separation between church and state, with the details of what exactly that means with respect to various specific controversies worked out over time through lots of cases examining particular facts.  The First Amendment is very complicated when it comes to religion, it's true, but luckily for Ms. O'Donnell, I have written a book about exactly what the religion clauses mean, in a way that I think even she could understand.  After all, Publishers Weekly wrote in its starred review that my "lucid explications of difficult constitutional concepts and the vagaries of Supreme Court rulings are superb, providing readers a deeper understanding of the First Amendment and Supreme Court jurisprudence." So, here's my offer to you, Ms. O'Donnell. If you would like a copy of my book Holy Hullabaloos: A Road Trip to the Battleground of the Church/State Wars, to help you prepare for your next political debate, I would be absolutely delighted to send it to you free of charge, and I'll even pay for postage. Let me know. I'll be checking my email at jaywex@bu.edu for your message.

SCOTUS, Prosecutorial Misconduct, and Public Confidence in the Justice System

Sherrilyn Ifill is Professor of Law at the University of Maryland. She is the author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century.

There's a story to be told from the intense media focus on last week's Snyder v. Phelps case in the Supreme Court. To be sure, the case - involving a challenge by the father of a slain serviceman to protests conducted by a fringe religious organization at his son's funeral - is an important one in which the Court may provide importance guidance on the reach of the First Amendment. The protests at the military funerals, in which followers of the Westboro Baptist "church," hold up signs that celebrate the death of U.S. soldiers in Iraq and Afghanistan, which Westboro members regard as a punishment for what they believe is U.S. tolerance of gays in the military - are repulsive by almost any sane standard. Given the lurid facts of the case, and the tension between our sympathy for Alfred Snyder and our traditional robust protection of even repulsive speech under the First Amendment, it's perhaps not surprising that almost every major news outlet and Supreme Court blog reported on last Thursday's oral argument.

But it's telling that on the same day Snyder was argued, the Court also heard oral argument in Connick v. Thompson - a case with considerably more concrete implications for the lives of thousands of criminal defendants. In Connick, the Court will decide whether a man who was convicted of capital murder and held in solitary confinement on death row for 14 years can hold a prosecutor's office civilly liable for violating his constitutional rights by withholding exculpatory evidence from defense counsel and failing to train prosecutors in their obligation to furnish this information to defense counsel. The obligation of prosecutors to turn over such evidence to defense counsel was first established by the Supreme Court in 1963. But the New Orleans district attorney's office argues in Connick that it cannot be held liable for a single incident of violating Brady. Instead, the prosecutor argues that they can only be held liable if it is demonstrated that they engaged in a pattern of withholding such evidence. In other words, only if we repeatedly violated the Constitution can we be compelled to pay for allowing an innocent man to be imprisoned and almost executed.

What Judge Walker's Ruling Tells Us About the Right's Twenty-Year Campaign of Spreading Fear on Same-Sex Marriage

Carlos A. Ball is Professor of Law at the Rutgers University School of Law (Newark). He has written extensively on gay rights issues and is the author of From the Closet to the Courtrom: Five LGBT Rights Lawsuits That Have Changed Our Nation. He lives with his family in Brooklyn, New York.

The most striking aspect of Judge Vaughn Walker's ruling, voiding California's ban on same-sex marriage, is how it makes clear that defenders of Proposition 8 did not even come close to presenting evidence in court supporting their claim that gay marriages harm society and individuals. It is one thing to say, during a political campaign in support of a ballot initiative, that same-sex marriage constitutes a threat to society or to the family or to children. It is another thing altogether to back up those claims through the introduction of specific evidence in a court of law.

Judicial rulings by trial courts are almost always forgotten after appellate courts have their say. This is hardly surprising given that appellate courts get the final word on how a lawsuit should be resolved. But there is one thing that trial judges can do that appellate judges cannot, and that is make findings of fact based on evidence submitted by the parties.

For the last twenty years, conservative activists have been prognosticating doom if society were to give same-sex couples the opportunity to marry. And yet, when they had the chance to defend that claim in court earlier this year, they called only one witness -- David Blankenhorn, the President of the Institute for American Values -- to testify. While on the stand, Blankenhorn gave such a convoluted and unsupported explanation of how same-sex marriage is harmful -- he claimed that it contributes to the "deinstitutionalization" (whatever that means) of traditional marriage -- that Judge Walker's ruling gave no weight to his testimony.

Prop 8 Overturned in California

 “Fundamental rights may not be submitted to a vote." So says yesterday's historic ruling overturning Proposition 8 in California. For the first time, a judge has granted the right to marry based on Constitutional grounds, saying that Prop 8 violated the 14th Amendment.

You can read the full ruling on Scribd, or and here's a roundup of some great media:

The New York Times editorial page with an excellent overview of the ruling and its importance. Also at the Times, an article explaining how the Supreme Court will have a hard time overturning Judge Walker's findings.

Lisa Keen offers analysis of the ruling and related cases in the courts. 

Dana Rudolph on how a court case brought by Jehovah's Witnesses aided the ruling.

LGBTQ civil rights have long been a central subject here at Beacon Press. Here are a few of our recent books relevant to yesterday's legal victory:

From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed our Nation

by Carlos Ball

Engaging and largely untold, From the Closet to the Courtroom explores how five pivotal lawsuits have altered LGBT history. Beginning each case narrative at the center-with the litigants and their lawyers-law professor Carlos Ball follows the stories behind each crucial lawsuit. He traces the parties from their communities to the courtroom, while deftly weaving in rich sociohistorical context and analyzing the lasting legal and political impact of each judicial outcome.

Read an excerpt of the book.

 Beyond (Straight and Gay) Marriage: Valuing All Families under the Law

by Nancy Polikoff

Beyond (Straight and Gay) Marriage reframes the family-rights debate by arguing that marriage shouldn't bestow special legal privileges upon couples because people, both heterosexual and LGBT, live in a variety of relationships-including unmarried couples of any sexual orientation, single-parent households, extended biological family units, and myriad other familial configurations. Nancy D. Polikoff shows how the law can value all families, and why it must.

Read Nancy Polikoff on another recent ruling affecting gay families.

Courting Equality: A Documentary History of America's First Legal Same-Sex Marriages

by Patricia Gozemba and Karen Kahn

On November 18, 2003, the Massachusetts Supreme Judicial Court granted equal marriage benefits to same-sex couples. The decision provoked a searing public debate over the meaning of marriage and family, civil rights, and the role of religion in law and society. But the experiment went forward nonetheless: thousands of Massachusetts gays and lesbians married and, remarkably, the sky did not fall.

Through engaging storytelling and powerful photographs, Courting Equality takes readers through the volatile public debate following the decision and introduces some of the many lesbian and gay families who have taken advantage of equal marriage laws. In Massachusetts, equal marriage has not destroyed the family but rather has reinforced the importance of love, commitment, fairness, and equality to the functioning of healthy democratic communities.

Read Karen Kahn on the fifth anniversary of marriage equality in Massachusetts.

Kids and Crime: Translating the Language of Rage

David Chura has worked with at-risk teenagers for forty years. His book, I Don't Wish Nobody to Have a Life Like Mine, documents the lives of children in adult lockups and how we as individuals and as a society have ultimately failed them. The following article was written to draw attention to the Juvenile Justice and Delinquency Prevention Act that is slowly making its way through Congress.

I've done a number of interviews since publishing I Don't Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup, and I find, like many authors, that I'm often asked the same questions. "I can answer them in my sleep," I heard one author grumble. I felt the same way until I started to really listen to the questions and give them deeper thought. After all, they raised good points, and interviewers repeated them because they got to the core of both the book and the issue.

Why I wrote the book was one of those questions. Initially, I answered the same way because it was true. I wanted to put a face to the statistics that abound in juvenile justice circles. Although they are just numbers (for instance, on any given day there are 7000+ kids in US adult jails, or African American youth are 5x more likely to be locked up than their white peers) they are powerful in their consequences, and I wanted to show just who we are talking about before important decisions and polices are made based on those numbers.

But I began to wonder if making those numbers real was my only reason for telling the stories of kids like Darquel with his life-long scars from sexual abuse, or Ray, who lived most of his life in group homes, juvenile centers, or homeless shelters.

Digging a bit more, I realized that I also was drawn to the idea of giving voice to the voiceless. Many young people are inarticulate. The teens I taught in the county jail, however, were at a greater disadvantage. They didn't have the tools other teens have to express themselves nor the opportunities to do so. Besides, of all the lessons life posed for them the one they really got was that no one listened, so why bother.

What Married Same-Sex Couples Owe to Hippie Communes

Today's post is from Nancy D. Polikoff, author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Polikoff is a Professor of Law at American University Washington College of Law, where she teaches Sexuality and the Law and has taught Family Law for more than 20 years. This post originally appeared on her Beyond (Straight and Gay) Marriage blog.

I'm guessing most married same-sex couples think they have little in common with the hippie communes of the 1960's and 70's. Free-loving hippies challenged the fabric of American society, including the nuclear family, while most married same-sex couples, or at least the organizations that speak for them, are busy presenting gay marriage as anything but a threat to heterosexual family life.

Well, think again. Last week's ruling in Gill v. OPM demonstrates just how much debt all gay rights advocacy owes those hippies.

After rejecting every asserted justification for excluding Massachusetts married couples from the legal consequences of being married under federal law, US District Court Judge Joseph Tauro said this:

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

The citation for the last sentence in that paragraph is a case called USDA v. Moreno, decided in 1973. It's the case that formed the primary precedent for the Court's landmark gay rights ruling in 1996, Romer v. Evans.

Moreno was a challenge to an amendment to the statute governing the federal food stamp program. When enacted in 1964, eligibility for food stamps was determined on the basis of household size and income. A "household" included any group of related or unrelated individuals who basically shopped for food and cooked in common. In 1971, Congress amended the law to exclude households whose members were not all related.

Trashing Thurgood Marshall

Sherrilyn Ifill is a professor at the University of Maryland School of Law, and is nationally recognized as an advocate in the areas of civil rights, voting rights, judicial diversity and judicial decision-making. Ifill is the author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century. This article originally appeared at The Root, where she is a frequent contributor.

The second day of the confirmation hearings of Elena Kagan to the U.S. Supreme Court was marked by some substantive dialogue, respectful banter and even an exchange of ethnic humor between the nominee and members of the Senate Judiciary Committee. Republicans and Democrats alike seemed to have forgotten the previous day's tensions.  But for many of us who'd sat in stunned silence while Republicans members of the committee used their opening statements to unleash an orchestrated disparagement of the record and legacy of Supreme Court justice and civil rights icon Thurgood Marshall, the wounds still felt raw.

The invocation of Marshall (35 times by Republicans) was a surprising new low, even for the shameless opportunism of modern confirmation hearings. At first it seemed astonishing as senator after senator -- Jeff Sessions (R-Ala.), Jon Kyl (R-Ariz.), John Cornyn (R-Texas) -- disparaged nominee Kagan's "association" with Thurgood Marshall. But the abandonment of the "Marshall as slur" tactic on day 2 suggests that the Republican senators' opening-day sucker punch may have backfired.

Thomas N. DeWolf: Traces of the Trade, Reparations, and Goodwin Liu

Thomas Norman DeWolf is the author of Inheriting the Trade: A Northern Family Confronts Its Legacy as the Largest Slave-Trading Dynasty in U.S. History. DeWolf was born in California and educated at the University of Oregon. He served as city councilor, county commissioner, and for nine years on the Oregon Arts Commission. His years of public service focused on literacy, children's issues, and restorative justice. This post originally appeared at his Inheriting the Trade blog.

I did not see this one coming.

President Obama has nominated Goodwin Liu, an Associate Dean and Professor of Law at UC Berkeley School of Law, to serve on the 9th Circuit Court of Appeals. Opponents have seized upon comments Liu made during a panel discussion on May 6, 2008 following a screening of Traces of the Trade at the Newseum in Washington, DC that was sponsored by the Council on Foundations (I wrote about the event here).

The distinguished panel was moderated by Harvard Law Professor Charles Ogletree and PBS Senior Correspondent Judy Woodruff. Panelists discussed the major themes in the film and how they connect to the world of philanthropy; how foundations can effectively facilitate discussions on race, the legacy of slavery, and the need for healing. When government lacks the capacity–or will–to lead the way in creating a more just world, how can we best encourage grass roots leadership in undoing racism and other forms of oppression.

Goodwin Liu’s comments were right in line with these themes. Yet if you Google "Goodwin Liu, Traces of the Trade" you'll find several links to a YouTube video clip, just over 2 minutes in length, titled "Obama Appeals Court Nominee – Goodwin Liu – on Reparations for Slavery." You’ll find an article by Ed Whelan, prominent conservative legal analyst and blogger, in which he claims Liu "... would make those who were not complicit in slavery pay the price of his grandiose reparations project." You’ll find many other bloggers chiming in.

But if you watch the entire discussion (which you can download here) you’ll find that what Liu was advocating in saying that each of us has a moral duty to make things right is that,

...instead of looking for the single national strategy, which is what everybody always looks for, think about what you can do on a much smaller scale in much smaller communities, around specific problems that people face, whether it’s in their schools, in their workplaces, access to health care, in their housing; whatever it may be.

For far too long we have allowed extremists and the media to define "reparation" for historic slavery as that "single national strategy" in which people who never enslaved anyone pay the price for checks being written to people who were never themselves enslaved. Such a definition serves well those who rely on division and controversy to serve their own ends. But it isn't helpful to those who want to make a positive difference in the world.

Jay Wexler: “Under God” and the Religion Clauses

Today's post is from law professor Jay Wexler, author of Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars. He studied religion at the University of Chicago Divinity School and law at Stanford, and worked as a clerk to U.S. Supreme Court justice Ruth Bader Ginsburg. Wexler teaches at the Boston University School of Law, and he blogs at holyhullabaloos.typepad.com.

The First Amendment's religion clauses raise a lot of hard questions about how much intermingling of church and state is constitutionally acceptable in our religiously diverse nation, but whether the Pledge of Allegiance is constitutional is not one of them. The Pledge, in its current form, in which children of impressionable age declare that they live in "one nation under God," clearly violates the First Amendment. The practice of leading kids in reciting the Pledge violates every one of the Supreme Court's tests for what passes constitutional muster: it endorses a specific and controversial religious viewpoint, coerces non-believing youngsters into declaring their belief in a single god, and undeniably has a religious purpose. When Congress added "under God" into the Pledge in 1954, it did so specifically to proclaim our superiority to those awful godless communists of the Soviet Union.

This is not to say, however, that those of us who believe in church-state separation or who are personally offended by the idea that our nation purportedly exists under the gaze of a single supreme being should be too upset by a recent 2-1 decision of a federal appellate court that the Pledge is constitutional. At least we can look forward to not watching an embarrassing replay of what happened the last time the appeals court heard the question, when nearly the entire House came onto the steps of the Capitol to hold hands and sing "God Bless America" in protest. We also likely don't have to worry that the Supreme Court, which last time around dismissed the case on procedural grounds not present here, will take the case and decide it in a principled fashion, thereby instigating a movement to amend the Constitution to declare us a Christian Nation.

The dissent in the case, penned by Stephen Reinhardt, the most minority-rights-friendly judge remaining on the federal bench, is a judicial masterpiece. In over 130 pages (the length of the opinion might explain why the court waited over two years since oral arguments took place to release the decision), Judge Reinhardt carefully tears apart all of the arguments advanced by the majority and then some. The opinion should be required reading for anyone who cares deeply about the Constitution and the protection it provides minorities in a diverse democracy.

David Chura: Juvenile Justice? Send ‘Em to Boot Camp!

Today's post is from David Chura, author of I Don't Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. Chura has worked with at-risk teenagers for forty years. His writing has appeared in the New York Times and multiple literary journals and anthologies, and he is a frequent lecturer and advisor on incarcerated youth. This post originally appeared at his Kids in the System blog.

By now I thought the shocked reactions to the Department of Justice's report on sexual abuse of juveniles in detention centers would've disappeared. But articles and editorials from across the country continue to appear as states grapple with shocking numbers that won't go away. Will all this worry and lament translate into change? Who knows?

The one thing I'm pretty sure won't change is America's fear of these new barbarians marauding our streets in hordes (except today we call them "gangs.") Because that fear seems ingrained in our culture, kids will continue to be shut away in the very horrible places we condemn.

But if you're going to continue putting kids in some kind of detention I have a solution: boot camp.

For several years during my ten year tenure teaching high school kids at a New York county jail I had the privilege (strange as that sounds) of teaching in a boot camp for teenagers serving county time.

When I was first approached about the assignment I turned it down.

They had the wrong guy. After all, I'd been a conscientious objector during Vietnam, and to this day am a staunch pacifist. The military approach to anything is not one I can, or will ever be able to endorse. Young guys? Put in a boot camp? To be screeched at? Humiliated? All in the name of "helping" them?

I wanted nothing to do with it.

Until I finally gave in and visited the boot camp on which county corrections would model theirs.

What I saw knocked the protest sign out of this old pacifist's fist.

David Chura: No Bail? Go to Jail.

Today's post is from David Chura, author of I Don't Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. Chura has worked with at-risk teenagers for forty years. His writing has appeared in the New York Times and multiple literary journals and anthologies, and he is a frequent lecturer and advisor on incarcerated youth. This post originally appeared at his Kids in the System blog.

Jail photo by http://www.flickr.com/photos/abardwell/ / CC BY-SA 2.0

We Americans don't know much about how our criminal justice system works. We have the basics down. "Commit the crime, do the time!" as the pop cliché has it.

If only it were that simple.

Most Americans know that if you get arrested and post bail you're released from custody while your case grinds through an overburdened court system.

That is, if you're lucky enough to be able to post bail-- which means you're white enough; rich enough; well connected enough. But if you can't get bail-- which means you're poor; probably a minority; you’ve burned bridges, are alone-- you go to jail. Even though you've not been judged guilty. Even though the state has yet to prove that you did the crime you're accused of. Even though you're innocent until proven otherwise. Still you stay locked up in jail, not some special holding place, until your trial. You live with convicted criminals in the same conditions that society has set up to punish (because that's what jails do) these wrongdoers.

That's the way it is for two-thirds of the people in U.S. jails according to a recent series on NPR; more than a half million inmates locked up because they can’t get the money to post bail.

David Chura: "Zero Tolerance" Creates More Problems Than it Solves

Today's post is from David Chura, author of I Don't Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. Chura has worked with at-risk teenagers for forty years. His writing has appeared in the New York Times and multiple literary journals and anthologies, and he is a frequent lecturer and advisor on incarcerated youth. This post originally appeared at his Kids in the System blog.

 "Zero tolerance." It sounds like a good idea: "Put your foot down." "Get tough." "We're not taking it anymore."

The American public, worried about the purported drug and gun wars being fought in our cities in the 1990s, grabbed onto this concept. In turn, a number of states and municipalities adopted "zero tolerance" laws.

Since then "zero tolerance" has pervaded our culture.

Draconian drug laws impose harsh sentences on nonviolent offenders, glutting prisons and draining overextended state budgets, while leaving the people with drug problems untreated.

Our hard-hitting laws about who is a sex offender create a caste of people who will be a burden for the rest of their lives on the very society these laws hoped to shield.

Certainly citizens, young and old, need to be protected from real sex offenders, but consider the case of a 17-year-old I taught at the county jail.

David Chura: Kids in Juvenile Detention Centers are at High Risk of Sexual Abuse

Today's post is from David Chura, author of I Don't Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. Chura has worked with at-risk teenagers for forty years. His writing has appeared in the New York Times and multiple literary journals and anthologies, and he is a frequent lecturer and advisor on incarcerated youth.

The numbers are disturbing. During 2008 through 2009, 12 percent or 3,220 of the kids locked up in state or privately run juvenile detention centers reported that they had been sexually victimized by another kid or by facility staff.

Even more disturbing is that 10.3 percent stated they had had sexual contact with an adult staff member. Of that number, 1,150 kids said that sex or sexual contact was forced on them. All this according to the recently released National Survey of Youth in Custody (NSYC) report mandated by the Department of Justice as part of the Prison Rape Elimination Act.

Statistics have an odd way of getting to us.

On one hand, they're just numbers; cut and dry; lifeless; boring to read; easy to lose track of. Yet they’re potent, almost like talismans that draw our attention to the truth beneath them.

David R. Dow: Legal Group Abandons Death Penalty, But Will it Bring "Tectonic" Change to Texas?

Today's post is from David R. Dow, Distinguished University Professor at the University of Houston and the litigation director at the Texas Defender Service, is the author of Executed on a Technicality: Lethal Injustice on America’s Death Row, as well as a memoir, The Autobiography of an Execution, which will be published by Twelve in February.

It is dangerous to disagree with Adam Liptak’s legal analysis, but I think I am going to have to. Liptak’s column in yesterday’s New York Times discusses the decision of the American Law Institute to abandon the death penalty. 

(The ALI is a supposedly elite group comprised of around 4000 lawyers, judges, and academics. I say "supposedly" because I am a member, and so I think I can say that membership has a lot to do with whom you know. As a federal judge whose name I will not reveal once said, the major qualifications for getting appointed to the federal bench are: (i) having a law license, and (ii) being friends with your U.S. Senator (or being a friend of a friend). The same might be said for membership in the ALI.  But I digress.)

Liptak points out that when the death penalty was reinstated by the U.S. Supreme Court in 1976, after a brief four-year hiatus, the framework shared by the death penalty laws that the Court upheld was created by the ALI. Essentially, this framework was designed to insure that the death penalty be reserved for the so-called worst of the worst.

Over time, a deep fissure developed in death penalty law. On the one hand, defendants facing the death penalty were allowed to place before the jury any and all so-called mitigating evidence -- that is, evidence that would warrant a life sentence, rather than a death sentence. On the other hand, juries could not be given too much discretion, because the consequences of too much discretion tend to be impermissible discrimination. So states had to channel the jury's discretion to try to wall off the factors juries were not supposed to take into account, while permitting them to take into account everything else.

In short, death penalty law had at its very heart a fundamental contradiction. Juries were to base their decision on personal characteristics of the defendant so as to identify the worst of the worst. Yet certain personal characteristics (like race and sexual orientation, for example) are irrelevant. Consequently, basing a decision on personal characteristics of the defendant is a recipe for all kinds of impermissible discrimination.

David Chura: Mentally Ill Inmates in a Crazy Prison System

Today's post is from David Chura, author of I Don't Wish Nobody to Have a Life Like Mine: Tales of Kids in Adult Lockup. Chura has worked with at-risk teenagers for forty years. His writing has appeared in the New York Times and multiple literary journals and anthologies, and he is a frequent lecturer and advisor on incarcerated youth.

In March 2007, the nonprofit Disability Law Center sued the state of Massachusetts over its treatment of hundreds of mentally ill inmates. Prisoners with emotional problems who are unruly in some way are kept in 23 hour solitary confinement, which, according to a November 10 Boston Globe article, has "led to self-mutilations, swallowing of razor blades, and numerous suicides."    

In response to these grave concerns the Patrick administration, in an out-of-court negotiation, proposed building special treatment units for mentally disturbed inmates. Now, that proposal is off the table; citing the budget crisis, those units will not be built. So it's back to court in an effort to force the state to give its incarcerated citizens their constitutional protection against "cruel and unusual punishment."

Massachusetts isn't alone in facing the problem of caring for mentally ill inmates. Every state has had to confront this growing trend which started in the 1960s and accelerated in the 1980s, when the system of large state psychiatric hospitals was shut down even though, as Oliver Sacks states in his bittersweet eulogy to these former mental hospitals ("The Lost Virtues of the Asylum" New York Review of Books, 9-24-2009), it was obvious that these closings created "as many problems as they solved." Communities weren't prepared, and still aren't prepared, to absorb and meet the needs of what he calls "sidewalk psychotics."

With these closings, along with the current "tough on crime" policies, it shouldn't surprise anyone, then, that these same people-- alone, unsupported, often self-medicated with drugs and alcohol-- increasingly end up behind bars, despite the fact that jails aren't set up to help people deal with emotional problems, problems that confuse their judgments and impel them to destructive actions

No doubt these are hard choices in hard economic times for any state. Yet, once again, as municipalities struggle to come up with innovative ways to deal with the money crunch, the one formula that never gets recalibrated is that the people with the greatest need and the least resources take the biggest hit. 

Nancy Polikoff: Why Should Anyone Have to Adopt Their Own Child?

Today's post is from Nancy D. Polikoff, author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Polikoff is a Professor of Law at American University Washington College of Law, where she teaches Sexuality and the Law and has taught Family Law for more than 20 years. For more, read her Beyond (Straight and Gay) Marriage blog.

Second-parent adoption has proved a powerful legal device for gay and lesbian families. It is modeled on step-parent adoption, a statutory scheme that allows a biological (or adoptive) parent's spouse to adopt a child without terminating that parent’s rights, thereby leaving the child with two parents. However critical this method of securing the family’s legal protection remains-- and will remain for the foreseeable future-- there is a conceptual flaw in analogizing same-sex couples to a step-family.

A step-family forms after a child already exists. The child lives with one parent. That person marries or remarries. If the child has no second parent, the step-parent adoption is relatively simple. If there is a second parent, that person must consent to a termination of his parental rights, or the termination must be obtained through a judicial proceeding, and only then can the adoption take place.

A lesbian couple, on the other hand, plans for a child together. From before birth, the child-to-be has two parents. The nonbiological mother is not a step-parent. The closest analogy to her situation is that of an infertile husband whose wife, with his consent, conceives using donor semen. That husband does not have to adopt his child.